Bad news for expanded DMCA powers: Warner Bros issues countless false takedown claims

[aroundtheworld]

Warner Bros: we issued takedowns for files we never saw, didn't own copyright to | Ars Technica

Originally Posted by Ars Technica

In a Monday court filing, Warner Brothers admitted that it has issued takedown notices for files without looking at them first. The studio also acknowledged that it issued takedown notices for a number of URLs that its adversary, the locker site Hotfile, says were obviously not Warner Brothers' content.
...
This is interesting because the DMCA requires a copyright holder issuing a takedown notice to state that it has a "good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." It's hard to see how anyone at Warner Brothers could have formed any beliefs—good faith or otherwise—about files it admits that no human being at Warner had even looked at.

Many will remember the file-storage site Hotfile, which made news earlier this year when it was sued by the MPAA for direct infringement, inducement of infringement, contributory infringement, and vicarious infringement. Since then, portions of the allegations were dismissed but the proceedings continue over the charges of secondary liability.

Warner's reckless abuse of the takedown tool provided to them by Hotfile looks bad in several respects:

• If usage of the tool to remove content from Hotfile servers legally constitutes a DMCA claim then Warner Brothers could be open to the penalties of perjury, which can be charged following false DMCA claims.
• Through forcing the removal of countless numbers of unrelated files, freely and legally distributable files, and open-source software files, Warner's actions cast doubt on industry claims regarding the scope of copyright infringement; is the number of estimated infringement cases (and the reach thereof) similarly inflated through improper and unverified identification methodology? (See the $75,000,000,000,000 lawsuit against Limewire as one particularly egregious example.)
• And, as mentioned by the topic article, Warner's on-record abuse of takedown tools casts a poor light on legislative debate over whether stronger legal recourse should be available to copyright holders.

Needless to say I'm no fan of Hotfile, but this kind of abuse worsens the circumstances for the rest of us who will have to deal with the consequences of Warner's negligence.

[rack gear]

big deal. it has no influence on pending legislation. if warner bros, or anyone else abuses or breaks the law, they too should be held accountable.

it's really simple issue... make laws that actually work. if the law gets broken, by either side, they face the consequences.

what we have now, is laws that don't work, and no consequences.

I am extremely active in anti-piracy, as well as the DMCA process, it frustrates me, but I still color inside the lines.

one isolated example from warner bros does not mean new legislation should not be created, that's just silly.

[Don Hills]

Originally Posted by rack gear

... one isolated example from warner bros does not mean new legislation should not be created, that's just silly.

It indicates better legislation should be created. With real teeth in the penalties for non-compliance, for both parties.

Dang it, I hate it when I agree with you...

[Don Hills]

Relevant story:

The Stop Online Piracy Act: Big Content's full-on assault against the Safe Harbor

Terry Hart argues to the contrary:

Stop Online Piracy Act and the DMCA | Copyhype

There's a lot more on other sites at the moment. Organisations and people who you'd think would be for SOPA are weighing in:

Congress’s Piracy Blacklist Plan: A Cure Worse than the Disease? | Techland | TIME.com

http://www.librarycopyrightalliance....opa-8nov11.pdf


Some uneasy humour:

theWAREHOUSE web comic

(Note that I didn't post the image itself, that would be a copyright infringement...)

[aroundtheworld]

Originally Posted by rack gear

... one isolated example from warner bros does not mean new legislation should not be created, that's just silly.

It doesn't mean that no new legislation should ever be created. It does, though, lend credibility to those who suggest that existing and proposed legislation have fundamental flaws which can be exploited for chilling effect by those with the resources and opportunity (topic article re-link) to do so. It may also erode the credibility of those who claim that such objections are exaggerated or merely imagined.

Originally Posted by Don Hills

It indicates better legislation should be created. With real teeth in the penalties for non-compliance, for both parties.

I have to agree with this. Fradulent copyright infringement claims backed by harsh legislation and aided by a prohibitively-expensive court system are a very real threat to the ideal of free speech. We need to curb true copyright infrigement as adequately as possible but importantly not at the expense of laws that allow for suppression of legitimate expression.

DMCA-backed, silencing, copyright claims are a very, very, very, very, very, very, very (it could go on!) real threat to legitimate speech and content usage, and as much as I am interested in reducing wanton copyright infringement, I have to on principle oppose abusable and over-broad legislation.

[AwwDeOhh]

Tell me how exactly does stopping sites like The Pirate Bay effect Free Speech?
It doesn't.
Free Speech doesn't include the right to take things that don't belong to you.

You might want to read this too:
Stop Online Piracy Act and the DMCA | Copyhype

[rack gear]

Originally Posted by aroundtheworld

It doesn't mean that no new legislation should ever be created. It does, though, lend credibility to those who suggest that existing and proposed legislation have fundamental flaws which can be exploited for chilling effect by those with the resources and opportunity (topic article re-link) to do so. It may also erode the credibility of those who claim that such objections are exaggerated or merely imagined.


I have to agree with this. Fradulent copyright infringement claims backed by harsh legislation and aided by a prohibitively-expensive court system are a very real threat to the ideal of free speech. We need to curb true copyright infrigement as adequately as possible but importantly not at the expense of laws that allow for suppression of legitimate expression.

DMCA-backed, silencing, copyright claims are a very, very, very, very, very, very, very (it could go on!) real threat to legitimate speech and content usage, and as much as I am interested in reducing wanton copyright infringement, I have to on principle oppose abusable and over-broad legislation.

clearly you don't understand the DMCA which has a counter claim provision, which is WHY Warner Bros is on the hook for breaking the law.

checks and balances are a part of any system, and if whomever Warner Bros was making those claims against is suffering at anything a fraction of a 1,000th of what has happened to the record industry you might have a point...

but in reality the actions of Warner Bros as wrong as they might be amount to the damage of a firecracker, versus that of piracy, which is on the scale of an atomic bomb...

seriously man, just a pinch of perspective here would be good.

[AwwDeOhh]

If Warner was in the wrong, they should face the consequences.
Just as the sites that wrong me every day should...no?

If you claim Warner is "bad" surely the 'other guy' is worse...

[AwwDeOhh]

Originally Posted by aroundtheworld

DMCA-backed, silencing, copyright claims are a very, very, very, very, very, very, very (it could go on!) real threat to legitimate speech and content usage, and as much as I am interested in reducing wanton copyright infringement, I have to on principle oppose abusable and over-broad legislation.

You might want to rethink the whole "will damage free speech angle"...

Here:
A letter from RENOUNED FIRST AMENDMENT FREE SPEECH LAWYER, Floyd Abrams, to Congress..
Floyd Abrams Free Speech & SOPA

noted First Amendment attorney Floyd Abrams wrote that rogue sites legislation in the House will protect free speech. This follows a letter Abrams wrote in May that affirmed that rogue sites legislation in the Senate upholds the First Amendment

MPAA Blog | First Amendment Expert: Stop Online Piracy Act Upholds Free Speech

[terryhart]

Warner Bros. denies abusing DMCA in Hotfile case | Media Maverick - CNET News

According to the article, Warner Bros sent over 1 million takedown notices to Hotfile over a 2 year period, and in that entire time, it received only four counter-notices.

It admits it made errors, but those amount to less than 1% of the notices it sent out.

I'll be the first to criticize copyright owners for abusing the law, and media/content companies definitely have their fair share of overreaching, but this story doesn't strike me as particularly compelling evidence for the dangers of abuse under the DMCA.

[aroundtheworld]

Perhaps you could clarify the point you're making, terryhart: are you suggesting that the principal indication of a fraudulent or improper takedown notice is whether it was contested with a counter-notice? Your linked article may shed some light on why this is likely a faulty metric:

Originally Posted by CNET

Proving someone knowingly made a false copyright claim isn't easy. The Electronic Frontier Foundation, an advocacy group for tech companies and Internet users, filed suit against Universal Music Group in 2007 after the record label tried to remove a YouTube clip that featured a baby dancing to a snippet of music from the artist Prince.

EFF argued that the clip was obviously fair use and the take-down notice was just as obviously made in bad faith. Universal denied the allegations and after four years the case is still unresolved.

The described circumstances are a textbook example of a situation which will produce a chilling effect. The greatly unequal balance of power between parties in combination with likewise unequal consequences that follow the improper issuance of a takedown-claim versus those of a counter-claim will strongly deter any future parties from attempting to exercise their legitimate rights in a similar manner. If the law (DMCA, PROTECT-IP, SOPA, et al.) does not adequately punish and discourage the issuance of frivolous and false takedown claims then the reasoned among us should be able to see compelling potential for abuse.

To briefly and tangentially address the "good faith versus bad faith" point presented in the CNET article: there is no rational argument which can claim that removing all files with a title containing the ambiguous string "The Box" can be done in good faith. Quoth the topic article:

Originally Posted by Ars Technica

Hotfile alleges [in September court filings] that Warner Brothers scraped websites for hotfile.com links containing the phrase "the box," which of course led to takedowns for dozens of files that were clearly not Warner Brothers content.

If such is found to be true; if Warner Brothers automated systems are indeed so inadequately programmed, tuned, and monitored; there could well be a strong case that these claims were made in bad faith.

[rack gear]

let's do the simple math...

Warner sent take downs in error on only 1% of the files...

Hotfile has much more than 1% of infringing content...

so don't go trying to make a mountain out of a molehill.

I'd be happy to see Hotfile work at the same accuracy as Warner... it would be a great day when only 1% of the files on Hotfile are infringing.

give it a break already.

[AwwDeOhh]

Exactly.
And the fact that they had to send OVER A MILLION takedown notices should be telling. Of course, selective blindness seems to be an affliction of the EFF...

[terryhart]

Originally Posted by aroundtheworld

Perhaps you could clarify the point you're making, terryhart: are you suggesting that the principal indication of a fraudulent or improper takedown notice is whether it was contested with a counter-notice?

If one million takedown notices are sent by only one company to only one web site during a two year period, that suggests that something more than the DMCA takedown procedure is needed for certain situations.

If, as WB admits, 1% of those were erroneous, but only four people cared enough to counter-notify, that suggests to me that the problem with erroneous notifications is overrated.

WB still may be found liable for those erroneous takedowns by the court. If it is, so be it, that's the law and WB surely knew the risk. But I think it's an exaggeration to say that this one case casts a pall on SOPA or PROTECT IP (where the liability for misrepresentation is greater than under the DMCA).

Your linked article may shed some light on why this is likely a faulty metric:

The described circumstances are a textbook example of a situation which will produce a chilling effect. The greatly unequal balance of power between parties in combination with likewise unequal consequences that follow the improper issuance of a takedown-claim versus those of a counter-claim will strongly deter any future parties from attempting to exercise their legitimate rights in a similar manner. If the law (DMCA, PROTECT-IP, SOPA, et al.) does not adequately punish and discourage the issuance of frivolous and false takedown claims then the reasoned among us should be able to see compelling potential for abuse.

In theory, it could produce a chilling effect, but has it? That is, is there really anyone out there that has foregone uploading a file that may be borderline infringing because of fear of a DMCA takedown? I don't think anyone can answer that affirmatively with a straight face.

For example, in 2007, 8 hours of video were uploaded to YouTube every minute. That tripled to 24 hrs a minute in 2009, and today it's over 48 hours of video uploaded every minute. Not a strong case for a chilling effect.

[aroundtheworld]

Originally Posted by terryhart

If, as WB admits, 1% of [the 1,000,000 notices] were erroneous, but only four people [out of 10,000+] cared enough to counter-notify, that suggests to me that the problem with erroneous notifications is overrated.

It's interesting that you take this interpretation, because mine is quite different; as the contextual additions to the quoted passage indicate, only four out of a minimum ten thousand warranted takedown counter-claims were filed. Why would such an extraordinarily low number of wrongly-affected uploaders not file a counter-claim? I could speculatively posit any number of explanations, but any singularly specific circumstance is of lesser relevance to the greater reality: if only 0.04% of wronged individuals are capable of following through the process necessary in order to restore to restore their rights, then the legal device in question has significant power as a speech-suppression tool. Not to mention the rather obvious elephant in the room: the service provider (Hotfile, in this instance) is under no obligation to restore the deleted content.

Affirmative proof for societal-level chilling effects is impossible, as I'm sure most of us can intuit; direct cause-and-effect is not applicable to the description of sufficiently large and chaotic systems. The overall quantity of speech on the internet (one measurement of which can be seen as hours-of-youtube-video uploaded per minute) will only ever rise as access grows ever wider, speeds grow ever faster, and as software evolves to ever-better handle the output. In our natural world we are hopelessly hard-pressed to conclusively measure the absence of an unknown; whether it be theoretical sales lost to copyright infringement or theoretical speech suppressed by purportedly anti-infringement laws. The best we can do is to strive to minimize the negative potential whenever possible. The laws currently under debate do not attempt to minimize this negative potential.

[AwwDeOhh]

Your proof is 'no proof' and your argument is exactly the same thing we heard when they were debating the origional DMCA...

Saying things like "it will break the internet" is laughable.

I would argue that the internet is currently 'broken'

Here's some fun facts:
Wiki

As of August 2010, the amount of spam was estimated to be around 200 billion spam messages sent per day. More than 97% of all emails sent over the net are unwanted, according to a Microsoft security report. MAAWG estimates that 85% of incoming mail is "abusive email"*, as of the second half of 2007. The sample size for the MAAWG's study was over 100 million mailboxes.

A 2010 survey of US and European email users showed that 46% of the respondents had opened spam messages, although only 11% had clicked on a link.

---
Cost of spam

A 2004 survey estimated that lost productivity costs Internet users in the United States $21.58 billion annually, while another reported the cost at $17 billion, up from $11 billion in 2003. In 2004, the worldwide productivity cost of spam has been estimated to be $50 billion in 2005.

*abusive, as in Malicious.. malware, viruses, ect..

And that's just email.. the latest report of newly registered websites estimates that over 90% of newly registered websites are malicious.. not to mention legit ones that are taken over by hackers/organized crime to steal personal information.. ie, identity theft, wire fraud, blackmail, extortion, viruses, spyware, malware, and other fun stuff a totally unregulated internet brings us. You need to have more security than Fort Knox just to connect to the internet these days, but 'everything's just hunky-dorey'...

Yeah.. everythings good the way it is... only if you're a hacker, organized crime, theif, counterfeitter, or most any other type of criminal... the honest person is the sucker here. Shouldn't be that way.

[terryhart]

Originally Posted by aroundtheworld

It's interesting that you take this interpretation, because mine is quite different; as the contextual additions to the quoted passage indicate, only four out of a minimum ten thousand warranted takedown counter-claims were filed. Why would such an extraordinarily low number of wrongly-affected uploaders not file a counter-claim? I could speculatively posit any number of explanations, but any singularly specific circumstance is of lesser relevance to the greater reality: if only 0.04% of wronged individuals are capable of following through the process necessary in order to restore to restore their rights, then the legal device in question has significant power as a speech-suppression tool. Not to mention the rather obvious elephant in the room: the service provider (Hotfile, in this instance) is under no obligation to restore the deleted content.

Hotfile tells you what you need to do to contest a takedown, which is the same as any other site operating according to the DMCA: Hotfile.com: One click file hosting

I refuse to believe that 99.96% of people are incapable of sending a 5 sentence email after being given instructions.

And while Hotfile keeps its safe harbor protection against the copyright owner whether or not it restores the deleted content, it absolutely opens itself up to liability from the user if it receives a counter-notification and does not restore the deleted content within 14 days.

Affirmative proof for societal-level chilling effects is impossible, as I'm sure most of us can intuit; direct cause-and-effect is not applicable to the description of sufficiently large and chaotic systems. The overall quantity of speech on the internet (one measurement of which can be seen as hours-of-youtube-video uploaded per minute) will only ever rise as access grows ever wider, speeds grow ever faster, and as software evolves to ever-better handle the output. In our natural world we are hopelessly hard-pressed to conclusively measure the absence of an unknown; whether it be theoretical sales lost to copyright infringement or theoretical speech suppressed by purportedly anti-infringement laws. The best we can do is to strive to minimize the negative potential whenever possible. The laws currently under debate do not attempt to minimize this negative potential.

They do minimize it, you've just been spending too much time on anti-copyright sites (largely funded by Google).

Absolutely NO US site can be blocked under this site. A foreign site can only be blocked after the Attorney General files suit in federal court, serves notice on the site operator -- at which point the site operator can move to dismiss or otherwise defend himself -- moves for a court order against a service provider, and the court grants the order and serves it on the service provider.

The notices that a private copyright owner can serve on ad and payment providers basically gives the copyright holder the right to sue the ad and payment provider if they fail to comply. And even then, they are limited to seeking a court order that requires the ad and payment provider to comply. No statutory damages, no monetary damages of any kind, no attorney fees or costs.

Ad and payment providers obviously don't have an incentive to cut off their own customers when they get a notice, and they have no other liability if they refuse to comply -- their only liability comes if they are subsequently served with a court order and knowingly and willingly refuse to take technically feasible and reasonable steps. Anyone who thinks these types of companies are going to willy-nilly cut their services off any site that is included in a notice doesn't understand business.

[rack gear]

Originally Posted by aroundtheworld

It's interesting that you take this interpretation, because mine is quite different; as the contextual additions to the quoted passage indicate, only four out of a minimum ten thousand warranted takedown counter-claims were filed. Why would such an extraordinarily low number of wrongly-affected uploaders not file a counter-claim? I could speculatively posit any number of explanations, but any singularly specific circumstance is of lesser relevance to the greater reality: if only 0.04% of wronged individuals are capable of following through the process necessary in order to restore to restore their rights, then the legal device in question has significant power as a speech-suppression tool. Not to mention the rather obvious elephant in the room: the service provider (Hotfile, in this instance) is under no obligation to restore the deleted content.

Affirmative proof for societal-level chilling effects is impossible, as I'm sure most of us can intuit; direct cause-and-effect is not applicable to the description of sufficiently large and chaotic systems. The overall quantity of speech on the internet (one measurement of which can be seen as hours-of-youtube-video uploaded per minute) will only ever rise as access grows ever wider, speeds grow ever faster, and as software evolves to ever-better handle the output. In our natural world we are hopelessly hard-pressed to conclusively measure the absence of an unknown; whether it be theoretical sales lost to copyright infringement or theoretical speech suppressed by purportedly anti-infringement laws. The best we can do is to strive to minimize the negative potential whenever possible. The laws currently under debate do not attempt to minimize this negative potential.

why the double standard? why do the thieves get to be wrong 99% of the time and the copyright owners only get to be wrong 1% of the time?

[aroundtheworld]

Originally Posted by terryhart

I refuse to believe that 99.96% of people are incapable of sending a 5 sentence email after being given instructions.

Incapable or not, I'm sure you can appreciate the gravity of the following points, and why many users -- especially those outside the United States -- would be intimdated by the prospect of sending such a letter:

• Identification of the content that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access was disabled.
• A statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake, or as a result of misidentification of the material to be removed or disabled.
• Your name, address, telephone number, and, if available, e-mail address.
• A statement that you consent to the jurisdiction of the Federal District Court in the judicial district in the United States in which your address is located, or if your address is outside the United States, in Northern District of California, and that you will accept service of process from the person who provided notification of the alleged infringement or from an agent of such person.
• Your physical or electronic signature.

I appreciate the correction about service provider liability in the event that deleted content is not restored following a counter-claim. I'll admit to have been shooting from the hip with that comment. I don't want to get too far off onto this tangent around why so few legitimately-warranted counter-claims were filed, so I won't say much more on the subject; we simply disagree about what it may suggest.

Originally Posted by terryhart

They do minimize [the risk of abuse], you've just been spending too much time on anti-copyright sites (largely funded by Google).

There's nothing to be gained by this kind of attempted slight, terryhart. Don't accuse me of shilling for big-tech and I won't accuse you of shilling for big-content. I'm positive that it isn't so simple for either of us. There's no need for these remarks.

Originally Posted by terryhart

Absolutely NO US site can be blocked under this site.

I say this in earnest and without a hint of snark: the internet consists of many websites outside the United States. Including this very one, which itself could arguably be at risk.

Originally Posted by terryhart

The notices that a private copyright owner can serve on ad and payment providers basically gives the copyright holder the right to sue the ad and payment provider if they fail to comply. ... Anyone who thinks these types of companies are going to willy-nilly cut their services off any site that is included in a notice doesn't understand business.

I'm afraid I have to object. When an organization armed with hundreds of lawyers requests that you voluntarily cease doing business with a client, lest you accept liability for their actions, you voluntarily stop doing business with that client. I'm not going to be so rude as to say that you don't understand business, but most advertisering services and search engines are in the business of advertising and responding to search queries. They probably aren't going to have the resources to spare in order to contest the legal challenges put to them by rent-seekers.

You have a very idealistic view of the SOPA bill, terryhart, and while I appreciate your reasoned and coherent opinion I disagree with your conclusions.

[aroundtheworld]

Originally Posted by AwwDeOhh

I would argue that the internet is currently 'broken' ... And that's just email.. the latest report of newly registered websites estimates that over 90% of newly registered websites are malicious.. not to mention legit ones that are taken over by hackers/organized crime to steal personal information..

It's interesting that you bring this up, because SOPA as written will break the technological security measures (which are not yet widely deployed) designed to counteract many types of malicious websites. If you've a curious mind, you may be interested to read about the Domain Name System (DNS), DNS cache poisoning (a method of attack used to direct users unknowingly to the innumerable malicious websites), and finally about the Domain Name System Security Extensions (DNSSEC) (the suite of security functions implemented at an ISP level which add a level of surety to domain lookup calls). For a particularly recent example of this attack in action, see this story: Brazilian ISPs Hit by DNS Poisoning Attacks - Softpedia - November 8, 2011. If you're not very interested in the subject, then the important fact to take away is that DNS filtering is entirely incompatibly within the scope of DNSSEC. The two cannot exist simultaneously, because DNSSEC's raison d'être is to prevent false lookups.

The SOPA hearings this week featured no witnesses who described themselves as qualified to testify on the implications of SOPA's DNS filtering on the implementation of DNSSEC. It is one of the many gaping holes in this legislation.

Originally Posted by rack gear

why the double standard? why do the thieves get to be wrong 99% of the time and the copyright owners only get to be wrong 1% of the time?

My most genuine and succinct answer would be that the infringers are not acting with the force of the public (in the form of governmental authority) behind them. When it comes to public action, there is no acceptable level of collateral damage.

If you want to elaborate on this discussion, we should do so by private message so as to avoid potentially overtly politicizing the forum.

[rack gear]

Originally Posted by aroundtheworld

Incapable or not, I'm sure you can appreciate the gravity of the following points, and why many users -- especially those outside the United States -- would be intimdated by the prospect of sending such a letter:

• Identification of the content that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access was disabled.
• A statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake, or as a result of misidentification of the material to be removed or disabled.
• Your name, address, telephone number, and, if available, e-mail address.
• A statement that you consent to the jurisdiction of the Federal District Court in the judicial district in the United States in which your address is located, or if your address is outside the United States, in Northern District of California, and that you will accept service of process from the person who provided notification of the alleged infringement or from an agent of such person.
• Your physical or electronic signature.

but this is the SAME standard that the copyright holder is held to, why should it be any less for the person CLAIMING the copyright holder is in error. Either the person making the Takedown Notice is the Copyright Holder, or the person filing the Counter Claim is the Copyright Holder.

Why the double standard?

Originally Posted by aroundtheworld

I say this in earnest and without a hint of snark: the internet consists of many websites outside the United States. Including this very one, which itself could arguably be at risk.

That is so untrue. There is even a whole part in the TOS/FAQ about how and what you Can Not Do here, including just posting LINKS to cracks & warez. This is exactly why those things are not found here. GS isn't overrun with rouge uploads... and GS doesn't spend a fortune on technology or labor solutions to enforce it. People here know the rules, if they get caught breaking them, they are banned.

Protection against Piracy is more about will and intent than it is about any technological issue, which is a point SOPA is hammering home.

Posting MP3's of music that you don't have permission for is STRICTLY FORBIDDEN.

Reference to and links to pirated ('cracked') software or websites that make pirate software available for download, is STRICTLY FORBIDDEN.

The posting of private emails and documents, is STRICTLY FORBIDDEN.

[aroundtheworld]

Originally Posted by rack gear

but this is the SAME standard that the copyright holder is held to, why should it be any less for the person CLAIMING the copyright holder is in error. Either the person making the Takedown Notice is the Copyright Holder, or the person filing the Counter Claim is the Copyright Holder.

Why the double standard?

Just to make it clear, and so that this subtlety is not lost in the hectic chain of discussion: I am not suggesting that there is necessarily any injustice in the fact that the uploader must yield to the service provider the bulleted information. I am simply remarking that the counter-claim is a communication with significant legal weight and should never be handled lightly, even when an individual is entirely sure of the legal status of the materials he has uploaded.

[rack gear]

Originally Posted by aroundtheworld

Just to make it clear, and so that this subtlety is not lost in the hectic chain of discussion: I am not suggesting that there is necessarily any injustice in the fact that the uploader must yield to the service provider the bulleted information. I am simply remarking that the counter-claim is a communication with significant legal weight and should never be handled lightly, even when an individual is entirely sure of the legal status of the materials he has uploaded.

but that's the point, it has weight BECAUSE the counter claim is being filed by someone who does have the rights to do so, otherwise anyone could file frivolous counter-claims as easy as they can upload infringing content... for all the failings of the DMCA at least they got this part right.

the loop hole in the DMCA is of course that people CAN just keep re-uploading infringing content without claiming ownership in the first place.

the counter claim form should be the point of entry for uploading materials in the first place, not just the resolution to a take down notice.

[John Eppstein]

Originally Posted by aroundtheworld

I'm afraid I have to object. When an organization armed with hundreds of lawyers requests that you voluntarily cease doing business with a client, lest you accept liability for their actions, you voluntarily stop doing business with that client.

No.

When you yourself are an organization such as Paypal, Visa, Mastercard, etc, which itself has hundreds of lawyers on staff you consider such requests on their merits and if you think they're unfounded it's time for your lawyers to earn their salaries.

[terryhart]

Originally Posted by aroundtheworld

There's nothing to be gained by this kind of attempted slight, terryhart. Don't accuse me of shilling for big-tech and I won't accuse you of shilling for big-content. I'm positive that it isn't so simple for either of us. There's no need for these remarks.

I apologize. I didn't mean to imply that you were shilling for big-tech, and I see how my remarks could have been taken that way. What I meant was that there is a lot of information online that is being pushed by big-tech, their interest groups and affinity groups, and independent groups that take their cue and agree with big-tech groups.

I say this as someone who has followed this bill closely: easily over 90% of the written opposition to this bill online is misinformed.

I'm afraid I have to object. When an organization armed with hundreds of lawyers requests that you voluntarily cease doing business with a client, lest you accept liability for their actions, you voluntarily stop doing business with that client. I'm not going to be so rude as to say that you don't understand business, but most advertisering services and search engines are in the business of advertising and responding to search queries. They probably aren't going to have the resources to spare in order to contest the legal challenges put to them by rent-seekers.

Read the bill. The third parties this bill encompasses -- ad providers and financial transaction providers -- have NO liability for failing to comply with a notice sent by a private copyright holder.

Here's the worst case scenario for one of these parties: a copyright holder sends a notice that a site dedicated to copyright infringement is using their services. The party fails to comply. The copyright holder files a lawsuit under the bill against the site. It requests, and the court grants, an order to comply against the third party. The third party still fails to comply. The copyright holder requests the court to order the third party to show cause why it has not complied.

Then, and only then can the court enjoin the third party to comply and/or impose monetary sanctions for knowing and willing failure to comply.